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EPA GHG Guidance is a Deceptive Ruse

If there was any doubt that the EPA was an out-of-control, rogue agency, their guidance for permitting of greenhouse gases is absolute proof.

EPA’s “PSD and Title V Permitting Guidance for Greenhouse Gases” was issued at the end of November and is effective January 2, 2011.

The “guidance” is deceptive because it purports to be guidance, while in fact, it is de-facto regulation. Virtually every state will adopt the “guidance” and base their permitting rules on it. Few states will be willing to go against EPA “guidance.” How can a state expect to have the EPA approve its regulations if the state ignores EPA “guidance?”

Issuing “guidance” rather than regulations means the EPA can avoid holding public hearings. It is a ruse tosubvert the will of Congress: It evades the requirements of the Clean Air Act that establishes the process that must be followed when the EPA develops new regulations.

The EPA has also effectively rewritten the Clean Air Act so as to ignore the thresholds established in the act for when the EPA must regulate pollutants. The EPA has done this by developing a “work around” known as the “EPA Tailoring Rule.”

The “tailoring rule” allows the EPA to avoid regulating emissions starting at 100 tons/year under Title V or 250 tons/year under the Prevention of Significant Deterioration (PSD) program that requires obtaining a construction permit. Instead, the “tailoring rule” allows the EPA to begin regulating CO2 emissions beginning at 100,000 tons per year for Title V applications or 75,000 tons for PSD applications.

If, as required by the Clean Air Act, the EPA had to regulate establishments with CO2 emissions as low as 100 tons/year, they would have been required to regulate churches, large homes and thousands of other relatively small establishments or processes, such as lawn mowing. This would have immediately intruded on every American, which would have been politically explosive, and would also have been virtually impossible to administer.

The “tailoring rule” allows the EPA to circumvent the intent of the Clean Air Act and also avoid the absurdity of attempting to regulate hundreds of thousands of installations.

This brings us to the third, and perhaps the most damning aspect of the EPA’s “guidance.”

Whenever an entity is subject to PSD, when building a new plant or making major modifications to a plant, it must demonstrate it is using the Best Available Control Technology (“BACT”) to control emissions.

Defining a BACT used to require an exhaustive analysis of alternatives, costs and possible unintended consequences.

But the EPA tells permitting authorities in the states to use an inconclusive approach for BACT that focuses on energy efficiency.

State permitting authorities are instructed to make judgments as to whether proposed installations are using the most efficient technology. States will have to impose themselves in the design process.

The end result could be that a recently hired political science major will decide whether an ultra-super critical power plant is using the most efficient design with the highest possible temperatures and pressures. While it’s more likely that a trusted state employee will make the decision, the employee will probably lack the technical knowledge and experience to make such decisions.

It opens the door for extremists, like Greenpeace, to challenge decisions and claim that a variety of supposed alternatives, whether speculative or not, should have been evaluated. They will be able to litigate every proposal and continue with their strategy of depriving America of needed electricity.

The EPA also says that the lack of a performance guarantee by a manufacturer is no reason to reject a proposed control measure. In other words, any unproven proposal has to be accepted as workable.

Finally, though there really isn’t an end to the trouble caused by the EPA guidance, there is no way to use modeling to evaluate the impact of CO2 on ambient air. Modeling is required whenever PSD’s kick in. This works well for analyzing NOx etc., but cannot work for CO2 since CO2 is immediately dispersed throughout the atmosphere.

This demonstrates that the Clean Air Act was not intended to control green house gasses. The EPA ignores this requirement of the Clean Air Act since it doesn’t work for CO2.

It appears as though the only way to regain control over the EPA is for Congress to step in and pass legislation that tells the EPA that green house gasses are not to be regulated under the clean air act or the clean water act.

If the President supports the EPA, he will veto the legislation and allow the rogue agency to forge ahead with controlling green house gasses.

If the EPA is allowed to continue implementing its “PSD and Title V Permitting Guidance for Greenhouse Gasses,” it will hurt the economy, kill jobs and raise the cost of electricity to households across America.